Public Disclosure Authorized
30886
PAPER NO. 99
Models for Recognizing
Indigenous Land Rights
in Latin America
Public Disclosure Authorized
Public Disclosure Authorized
BIODIVERSITY SERIES
Public Disclosure Authorized
Roque Roldán Ortega
October 2004
THE WORLD BANK ENVIRONMENT DEPARTMENT
Models for Recognizing
Indigenous Land Rights
in Latin America
Roque Roldán Ortega
October 2004
Papers in this series are not formal publications of the World Bank. They are circulated to encourage thought and discussion. The use
and citation of this paper should take this into account. The views expressed are those of the authors and should not be attributed to
the World Bank. Copies are available from the Environment Department of the World Bank by calling 202-473-3641.
The International Bank for Reconstruction
and Development/THE WORLD BANK
1818 H Street, N.W.
Washington, D.C. 20433, U.S.A.
Manufactured in the United States of America
First printing October 2004
Contents
v
FOREWORD
PREFACE
ix
ACKNOWLEDGMENTS
xv
Chapter 1
A Short History of Indigenous Legal Treatment in Latin America
1
Chapter 2
Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America
Countries with a Superior Legal Framework
5
5
Bolivia
5
Brazil
6
Colombia
6
Costa Rica
7
Panama
8
Paraguay
8
Peru
9
Countries with a Legal Framework in Progress
9
Ecuador
9
Guatemala
10
Honduras
11
Mexico
11
Nicaragua
12
Venezuela
12
Countries with a Deficient Legal Framework
13
El Salvador
13
Guyana
13
Suriname
14
Chapter 3
Common Problems in the Legal Framework for Recognition of Indigenous Lands
Biodiversity Series
15
iii
Models for Recognizing Indigenous Land Rights in Latin America
Chapter 4
Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources
Management
17
Land Tenure Regime
17
Territorial Recognition
20
Natural Resources Rights
20
Tenure Security
22
Autonomy
23
Legal Recourse
24
Conclusions
25
NOTES
27
BIBLIOGRAPHY
29
BOXES
1
2
3
iv
Status of ILO 169 Ratification
2
Typology of Indigenous Legal Regimes
3
Key Characteristics of Indigenous Land Tenure, by Country
18
Environment Department Papers
Foreword
The history of the Americas did not begin with
the discovery by Christopher Columbus. The
people of the Americas had already lived
thousand of years of impressive development,
including those of science and technology; the
forgotten history of that continent.
In many ways, this paper represents an
important dimension in filling history’s gaps
through the lens of land rights. The continent
was populated by many nations that
functioned in harmony with nature, had a
variety of cultures and languages, and
developed many different socio-economic
systems (nationally and locally). These nations
were sovereign and recognized from Alaska to
Patagonia.
Many nations grouped actively around an
important metropolis (e.g., Tikal, Machu
Picchu), others were mainly agricultural
societies and deeply attached to and,
dependent on, the land. However, in all of
them, we know they had very advanced and
well established institutional arrangements and
organizations (formal and informal), created
and nurtured with the view to respond to the
needs and challenges of the time. With a
variety of forms of governance, these societies
did assign rights and responsibilities to the
different actors and groups in order to
maintain an acceptable level of social cohesion,
to establish important political consensus
Biodiversity Series
around economic and social issues, and to
create the capacity for the integration of the
material and the non-material dimensions of
peoples’ lives.
Some of the above became important traditions, which we find even today in many parts,
including the territories inside the developed
countries of North America.
Central to those indigenous traditions was
land and, therefore, land tenure systems and
rights were essential to the people’s welfare in
many respects—in particular, land as a major
economic asset, an instrument of inheritance,
and a symbol of social status. But land was also
sacred and essential to people’s spiritual
development. In all those societies, it is very
rare to find a vacuum in both the legal, or
customary arrangements, as regards the
assignment of land titles and land rights—
whether these are expressed formally or
informally.
Once the Conquistadores realized that there
was not much gold to take away from the
Americas, they clearly saw economic and
social power, and substantive material gains,
from the land. This created a major pressure to
assign rights in forms and manners that would
benefit those Conquistadores. Whole valleys
and huge chunks of nations were assigned to
individuals, without respect for existing
v
Models for Recognizing Indigenous Land Rights in Latin America
customary laws, rules and regulations. They
created and, at the same time, superimposed
their own colonial system of legislation on the
top of what was already a sophisticated and
effective system of land tenure.
•
•
Thus, these societies experienced an imposition
of one system of governance over another.
Physical force and non-discriminating forms of
enforcement were the foundations of the
Conquistadores’ new forms of governance.
In today’s reality, we know that the peoples
from these nations have not vanished, nor
have their ways of empowerment, assignment
of rights, or other forms of institutional
arrangements vanished either. Therefore, we
witness in many countries a great deal of
complexity in relation to the access,
management, usufruct and control of land
assets.
As the political systems of some countries are
now becoming more democratic or open to
listening and embracing the views of
minorities (e.g., power, ethnic), these issues of
land rights have clearly come up to the surface
of the political life. Issues of sovereignty,
customary law and, simply, of traditional
norms—from the national to the household
levels—are being put on the table of what is
clearly a complex social dialogue. In some
instances, these dialogues have even caused
the demotion of several presidents in Latin
America.
The paper in front of you is an excellent source
of basic information, sharing an easy and
practical understanding about land tenure/
titling, in the same sense discussed above. In
addition, the paper represents a genuine
attempt to:
vi
•
First, recognize the existence of these
complex land rights and land titling
systems across Latin America, often
ignored in the public debate, unless policy
makers confront an immediate problem.
Second, study the content at the country
level, so that international experiences and
comparisons may spark a move towards
policy coherence and legislation that will
ultimately benefit indigenous peoples and
those poor people who live from the land.
Third, demonstrate that land is not only a
physical asset with some economic and
financial value, but an intrinsic dimension
and part of peoples lives and belief
systems. The end is not necessarily a
material product or a level of economic
productivity.
The phenomena addressed in this paper are
not unique to the Americas. In my own
experience of several years working in the
confines of the Sahelian countries’ agricultural
sector (e.g., Senegal, Mali, Niger, Gambia), the
juxtaposition of customary arrangements,
colonial arrangements, and post-colonial
arrangements was really evident. The lack of
coherence in the land tenure and land titling
policies in the mid-eighties constituted one of
the main sources of poverty—particularly for
women—and of unsustainable agricultural
practices. Many agricultural programs and
strategies failed because of issues of titling and
tenure. Development institutions tried many
forms of interventions: agrarian reforms,
resettlement programs, privatization of land,
and the like. The performance of many of these
interventions was mixed.
Titles over the land represent also a form of
productive asset that determines the cash
Environment Department Papers
Foreword
income of the owner and her/his ability to
have access to credit. In most societies, having
a title over a good piece of the land is a major
source of credit collateral. Thus, if you do not
have land, then your access to credit is very
limited. It was, in fact, out of these titles over
the land that many landlords (absentee ones)
became bankers and industrialists. For the
poor, even tenure and titling of a small plot in
rural, or urban, areas represents a major source
of welfare for her/his and future generations.
The market prices value mainly (not always)
what is formally owned.
Not less important is the land titles’ role in the
development of individual and social identity.
Land is a source of social power and social selfworth. In many societies, part of the land has
sacred meaning and great spiritual value.
Thus, whenever governments or the private
sector move people away, or alienate them,
from those sacred sites, this process is almost
always accompanied by social disruption,
instability and conflict.
While for landlords the land is just a productive asset, for indigenous peoples it is much
more than that.
If the main aim of development institutions is
to alleviate poverty, it is clear that issues of
land tenure and land titling in the context of
indigenous peoples cannot be overlooked.
Thus, any future debate on land titling
demands focus on the fact that those titles are
a significant instrument to take people out of
poverty and a major source of economic
growth, particularly in agrarian economies.
However, this is not all. There is also a human
rights dimension to all of the above. And it is
essential to understand this human rights
dimension of land rights, not just as a legal
obligation, but as a key element of economic
and social development. Land laws in both
developed and developing countries have
affected the poor and the powerless the most,
particularly women. These rights over the land
affect other human rights; e.g., The Right To
Food (security of food supplies), The Right To
Housing (capacity to own a house), The Right To
Health (the use of medicinal plants) and The
Right To Development, to name a few.
This paper should be read by development
practitioners and policy makers.
Alfredo Sfeir-Younis
Senior Adviser to the Managing Director’s Office
The World Bank
Biodiversity Series
vii
Preface
Over the past several years, the international
community has become increasingly aware of
the vital importance of the legal recognition of
indigenous land rights to the cultural survival,
economic development and self-determination
of indigenous peoples and their communities.
As far back as 1981, for example, the United
Nations Subcommittee on Racism, Racial
Discrimination, Apartheid and Decolonisation
sponsored a special International NGO
Conference on Indigenous Peoples and the
Land in Geneva, Switzerland which was
attended by over 300 indigenous leaders and
NGO representatives from all parts of the
world. The purpose of the meeting was to
bring to the attention of the international
community the disparate legal, political and
economic conditions under which indigenous
peoples lived and their struggles to survive as
culturally distinct peoples and communities.
“The root cause of the crisis,” the statement
which resulted from the International NGO
conference declared, “is the denial of the right of
[indigenous peoples] to their land. Their land and
resources are plundered by vested interests and
particularly by transnational corporations seeking
maximum profits. The constant grabbing of more
of their land and the denial of self-determination is
destroying their traditional value systems and the
very fabric of their societies.” (World Federation
of Democratic Youth, 1981, p.10).
A year following this conference, in 1982, the
UN Human Rights Commission’s SubBiodiversity Series
Commission on Prevention of Discrimination
and Protection of Minorities established a
special Working Group on Indigenous
Populations, the purposes of which were to
review current national legislation in relation
to the human rights and fundamental
freedoms of indigenous peoples and
recommend new international standards for
the recognition and protection of indigenous
peoples rights. From the beginning, the issue
of indigenous land rights was on the agenda of
the UN Working Group, and during the 1985
session of the Working Group, a group of
indigenous leaders from the Amazon region of
South America focused particular attention on
the collective rights of indigenous peoples to
their lands, territories and natural resources.
Jose Uranavi, the President of the newly
formed Central Organization of Indigenous
Peoples and Communities of Eastern Bolivia
(CIDOB) and representing the Coordinating
Council of Indigenous Organizations of the
Amazon Basin (COICA), related the following
to the members of the UN Working Group at
the 1985 meeting:
Our defense of the land and natural resources
is for the cultural and human survival of our
children, and is the foundation of a moral security for peoples who have different languages
and customs… We indigenous peoples think and
plan in terms of the territory, not only the individual plot; in this way, we assure the access
ix
Models for Recognizing Indigenous Land Rights in Latin America
of the community to the diverse resources of
the forest (wood, soil appropriate for agriculture and cattle, and wild fauna)… For us, the
first thing is to secure our land which
belongs to us by right, because we are the true
owners of the land and natural resources. We
indigenous peoples know that without land
there can be no education, there can be no health
and there can be no life. —Uranavi, 1985, p. 20
Continuing along a similar path, in the second
half of the decade of the 1980s, the
international environmental community began
to acknowledge the increasing significance of
indigenous peoples’ traditional knowledge and
land use practices to the new notion of
“sustainable development.” The World
Commission on Environment and
Development, for example, conducted
consultations with indigenous leaders from
throughout the world and in its well-known
1987 report, Our Common Future, highlighted
the great loss to humanity posed by the
disappearance of indigenous peoples and their
traditional knowledge and experience. “The
starting point for a just and humane policy for
such groups,” the report of the World
Commission wrote in a section titled
“Empowering Vulnerable Groups”:
. . . is the recognition and protection of their
traditional rights to land and the other resources that sustain their way of life—rights they
may define in terms that do not fit into standard legal systems. These groups’ own institutions to regulate rights and obligations
are crucial for maintaining the harmony with
nature and the environmental awareness characteristic of the traditional way of life. Hence
the recognition of traditional rights must go
hand in hand with measures to protect the local institutions that enforce responsibility in
x
resource use. And this recognition must also
give local communities a decisive voice in the
decisions about resource use in their area.
—World Commission on Environment
and Development, 1987, pp. 115–116
Finally, in 1989, the International Labor
Organization (ILO), which at the time was the
only UN agency with a special convention in
relation to indigenous peoples, revised its
Convention 107 of 1957 and created a new
Convention (ILO Convention 169) which
countered the “integrationist” or
“assimilationist” philosophy of the previous
convention and called for respect for both the
cultural integrity of indigenous peoples and
their communities and for their coparticipation in national society and
development decision-making. Land rights,
which assumed an important role in both
conventions, are especially highlighted in the
latter convention.
ILO Convention 169 states that the term
“indigenous lands” should be conceived as the
total environment of the areas that indigenous
peoples occupy and use. It also defines the
conditions for compensating indigenous
peoples for the exploitation of subsoil wealth
contained on their lands, and calls for the
participation of indigenous peoples in the
utilization, administration and conservation of
natural resources contained on such lands.
(See: ILO Convention 169 on Indigenous and
Tribal Peoples in Independent Countries, 1989.)
All of the above provides an international
perspective for understanding the significance
of the current paper by Colombian lawyer and
indigenous rights specialist Roque Roldán
Ortega on the current situation of indigenous
Environment Department Papers
Preface
land rights in the constitutions, legislative
regimes and administrative institutions of
Latin American countries. Roque Roldán
Ortega is eminently qualified to write on this
subject given his several decades of experience
as the head of the Office for Indigenous Affairs
of the Colombian Agrarian Reform and
Colonization Institute (INCORA), his position
as Director of the General Office of Indigenous
Affairs of the Colombian Ministry of the
Interior, and his founding and leadership of the
non-governmental Center for Indigenous
Peoples Cooperation (CECOIN) in Bogota in
1985.
international agencies as the ILO, the
Organization of American States, the World
Bank, and numerous bilateral agencies in
reviewing legislative reforms relating to the
recognition of indigenous lands and
recommending changes in administrative
procedures for the more efficient and just
regularization and titling of such lands. He is
also currently involved in a very important
project sponsored by the COICA in preparing
general guidelines for indigenous land
regularization and natural resources control
throughout the lowland regions of South
America.
Roque Roldán Ortega has played an
historically important role in the recognition
and titling of numerous indigenous resguardos
in his native Colombia. He has also provided
active and critical support to numerous
indigenous and Afro-descendant organizations
in their successful struggle to reform the
Colombian Constitution in 1991 and to
produce post-Constitutional legislation
protecting the land, territorial and natural
resource rights of both indigenous peoples and
Afro-Colombian populations. Background to
this experience is contained in his book,
Indigenous Peoples of Colombia and the Law —
A Critical Approach to the Study of the Past and
Present, published in English by the Gaia
Foundation, COAMA and the ILO in 2000.
From the perspective of the World Bank,
Roque Roldán Ortega’s paper is also important
because over the past decade, and especially
since the introduction of the World Bank’s
Operational Directive on Indigenous Peoples in
1991, the World Bank has been involved in
financing several land administration
programs in Latin American countries, many
of which contain indigenous land
regularization components. Both the original
World Bank Operational Manual Statement on
“Tribal Peoples in Bank-financed Projects”
(OMS 2.34) and its current Operational
Directive on “Indigenous Peoples” (OD 4.20)
contain special directives for protecting the
land rights of indigenous peoples. The latter
document, in fact, states under the section on
the requirement for Borrowers to prepare
Indigenous Peoples Development Plans that
“when local legislation needs strengthening,
the Bank should offer to advise and assist the
borrower in establishing legal recognition of
the customary or traditional land tenure
systems of indigenous peoples.” It also notes
that “where the traditional lands of indigenous
Roque Roldán Ortega also has had extensive
experience in providing technical advice in the
area of indigenous legislation and
administrative procedures relating to
indigenous land regularization to several other
Latin American governments. He has also
worked as a consultant with such
Biodiversity Series
xi
Models for Recognizing Indigenous Land Rights in Latin America
peoples have been brought by law into the
domain of the state and where it is
inappropriate to convert traditional rights into
those of legal ownership, alternative
arrangements should be implemented to grant
long-term, renewable rights of custodianship
and use to indigenous peoples.” Finally, it
states in the same paragraph that “these steps
should be taken before the initiation of other
planning steps that may be contingent on
recognized land titles.” (See OD 4.20,
paragraph 15 (c), 1991.)
In the year following the introduction of OD
4.20, Alaka Wali (an anthropologist who had
done fieldwork among the Kuna Indians of
Panama) and I published a desk review of 13
World Bank-financed projects under
supervision or preparation which contained
special land regularization programs for
indigenous populations in lowland South
America. The review looked at the
achievements and operational problems of
these programs, especially in countering the
potentially negative effects of road
construction, land settlement and resource
extraction activities on the lands, natural
resources and cultures of forest-dwelling
indigenous groups in several South American
countries. One of the major findings of this
review was that although these land
regularization programs were instrumental in
physically demarcating and in some cases
collectively titling large areas of indigenous
lands, they also contained many outstanding
problems especially in terms of the nature of
legal frameworks, procedural problems in
regularizing such lands following
demarcation, and follow-up activities in terms
of controlling land invasions and protecting
xii
the natural resources contained on such lands
(see Wali and Davis, 1992).
Since the publication of this report, there have
been numerous other projects financed by the
World Bank which contain indigenous peoples’
land regularization programs or are standalone land administration projects targeted at
indigenous peoples. To date, there have been
some evaluations of individual projects,
including one very important review done by
Enrique Sánchez Gutiérrez and Roque Roldán
Ortega of a Bank-financed land regularization
program for indigenous and Afro-descendant
communities on the Pacific Coast of Colombia
(see Sánchez Gutiérrez and Roldán Ortega,
2002). However, there has still not been a
systematic comparative study of the lessons
learned from the entire portfolio of indigenous
land regularization programs financed by the
World Bank since the introduction of OD 4.20
in 1991.
In all of the above senses, the present report by
Roque Roldán Ortega poses a special challenge
in terms of the need both to better understand
the current legislative frameworks of Latin
American countries in relation to indigenous
peoples land rights, as well as to provide
support for the sorts of actions which
international donors have or could be taking to
assist these countries in actually implementing
such legislation. In taking up this challenge,
the World Bank would not only be responsive
to the international focus upon indigenous
peoples land rights which was first highlighted
by international agencies in the decade of the
1980s and is contained in its own operational
directive in relation to indigenous peoples, but
it would also assist its borrower countries in
Environment Department Papers
Preface
preparing the legal and institutional conditions
for the cultural survival, ethno-development
and protection of the lands and natural
resources of indigenous peoples and their
communities in the years ahead. The current
report by Roque Roldán Ortega provides an
excellent historical framework for such future
analytical and operational work on indigenous
land and natural resource rights and is worthy
of close attention by the World Bank and other
international development agencies.
Shelton H. Davis, Ph.D.
Senior Fellow, Center for Latin American Studies,
Edmund A. Walsh School of Foreign Service,
Georgetown University, Washington, DC
Previous position: Social Sector Manager, Latin
America and the Caribbean Region, World Bank
References Cited
Roldán Ortega, Roque, Indigenous Peoples of
Colombia and the Law: A Critical
Approach to the Study of Past and Present
Situations (Bogota, The Gaia Foundation,
COAMA and ILO, 2000).
Sánchez Gutiérrez, Enrique and Rolda Ortega,
Roque, Titulación de los Territorios
Comunales Afrocolombianos e Indígenas
en la Costa Pacífica de Colombia
(Washington, Banco Mundial, 2002).
Uranavi, José, “Bolivia: Statement to the UN
from the Indigenous Peoples of Eastern
Bolivia,” IWGIA Newsletter (Copenhagen),
Numbers 43 and 44, September and
December 1985, pp. 15-22.
Biodiversity Series
Wali, Alaka and Shelton Davis, Protecting
American Indians: A Review of World Bank
Experience with Indigenous Land
Regularization Programs in Lowland South
America (World Bank, Latin America and
the Caribbean Technical Department,
Regional Studies Program, July 1992).
World Commission on Environment and
Development, Our Common Future
(Oxford, Oxford University Press, 1987).
World Federation of Democratic Youth, Report
Prepared for the International NGO
Conference on Indigenous Peoples and the
Land, Geneva, Switzerland, 15-18 1981.
xiii
Acknowledgments
The idea of this report came from Claudia
Sobrevila, Senior Biodiversity Specialist of the
World Bank’s Environment Department. The
paper was prepared by the author in September 2003. We would like to recognize the
generous help of Karen Anne Luz from the
Environment Department, who synthesized
the original report provided by the author and
Biodiversity Series
for her comments during various versions of
the document. We would also like to thank the
colleagues that provided constructive
comments to the manuscript: Anthony B.
Anderson, Tania Carrasco, Judith Lisansky,
Kathy MacKinnon, and Alberto Ninio. The
study was funded by the Environment
Department.
xv
1
A Short History of Indigenous
Legal Treatment in Latin America
The official policy of all the Latin American
states towards their indigenous populations
from independence until at least the 1930s was
one of assimilation. They used a variety of
coercive means to obtain this goal, from forced
conversion to Christianity and compulsory use
of Spanish to outright war. State authorities
were particularly keen to abolish the institutions
of collective territorial property and communal
government of the native peoples of the
Americas.
The justification for this strategy of eliminating
native peoples as separate entities was national
unity. Its philosophical underpinning was a
conception of indigenous societies as savage and
backwards, inimical to the project of building
solid and prosperous national societies based on
economic liberty and representative democracy.
As one republican ideologue put it, national
unity was only to be found in a society
characterized by “a single religion, a single
tongue, and a single lineage.”
Starting in the 1940s, the relationship between
Latin American governments and their
indigenous populations began to change. In
April of 1940, the First Interamerican Indigenist
Congress was held in the Mexican city of
Pátzcuaro, which generated the Pátzcuaro
Agreement, largely based on the indigenous
policies of the government of Lázaro Cárdenas.
This did not represent a fundamental change in
the strategy of assimilating indigenous peoples;
Biodiversity Series
rather, it signaled a recognition that the most
expeditious and constructive way to ensure
their integration into national societies was to
provide better education, technical training, and
financial assistance to the traditionally
marginalized indigenous populations.
The approval in 1957 of the International Labor
Organization’s Convention 107, which lays out
norms for the protection and integration of
indigenous peoples in independent countries,
reinforced the strategic approaches codified in
the Pátzcuaro Agreement. All the independent
countries of Latin America and the Caribbean
ratified this convention, thereby incorporating it
into their national legal framework, as well as
making it part of their international
responsibilities. Following the spirit of the
convention, some of the new agrarian laws
adopted by countries in the region under the
US-led Alliance for Progress included modest
proposals for focusing attention on the
numerous land claims of the region’s native
peoples.
The agrarian reforms undertaken widely
throughout Latin America in the 1960’s,
although not very successful, did result in the
first important examples of recognition of
indigenous land claims since the colonial era. In
addition, the popular mobilization among
campesinos that accompanied these reforms
helped strengthen the indigenous movement in
many countries. As social scientists finally
1
Models for Recognizing Indigenous Land Rights in Latin America
discredited the notion that indigenous societies
were stuck in a backwards phase of human
development, the indigenous movement
throughout the region also gained the support
of other sectors of society.
Starting at the beginning of the seventies, this
new vision of relations between the state and
indigenous peoples began to be integrated into
new constitutions as they were adopted by the
various countries. The Panamanian
Constitution of 1972 took the first timid steps in
this direction, while the Peruvian Constitution
of 1979 laid out a clearer vision. Other
constitutions with a new focus on indigenous
issues followed: after waging war against their
indigenous populations, new constitutions in
Guatemala in 1985 and Nicaragua in 1987
evinced a clearer recognition of indigenous
rights; these were followed by constitutions
codifying more progressive indigenous policies
in Brazil (1989), Colombia (1991), Paraguay
(1992), Argentina (1994), Bolivia (1995), Ecuador
(1998), Venezuela (1999), and Mexico (2001).
With the exception of Panama and Nicaragua,
all the other countries mentioned above have
also ratified ILO Convention 169, the
Convention concerning Indigenous and Tribal
Peoples in Independent Countries (see Box 1),
which updates ILO 107 by recognizing, among
other indigenous rights, the very close
relationship between traditional lands and
cultural identity for indigenous peoples.
The situation in other countries of Latin
America is mixed. Some, like Honduras and
Costa Rica, haven’t recognized indigenous
rights in their constitutions, but they have
ratified ILO Convention 169. Chile has neither
recognized indigenous rights in its constitution
nor ratified the convention, yet it has a law that
establishes norms for the protection and
development of the indigenous population, and
2
Box 1
Status of ILO 169 Ratification
Ratified
Not Ratified
Argentina
Bolivia
Brazil
Colombia
Costa Rica
Ecuador
Guatemala
Honduras
Mexico
Paraguay
Peru
Venezuela
Belize
Chile
El Salvador
Guyana
Nicaragua
Panama
Suriname
Uruguay
Source: ILO website.
it has created an institution, the National
Corporation for Indigenous Development
(CONADI) to do so. Four other countries—
Guyana, Suriname, Uruguay, and El Salvador—
have no legal recognition of indigenous rights
as of 2003 when this review was done.
Today, there is substantial variation in the
degree of legal recognition of indigenous rights
across the Latin American region. Broadly
speaking, the countries of Latin America can be
divided into three groups, according to their
legal treatment of their indigenous populations:
Superior legal framework: These countries
have made a high-level commitment, through
either their constitution, international
agreements (such as ILO 169) or both, to
indigenous rights, and they have followed
through with a regulatory framework and
concrete actions to ensure those rights,
including legal recognition of indigenous lands.
This group includes Bolivia, Brazil, Colombia,
Costa Rica, Panama, Paraguay, and Peru.
Legal framework in progress: These countries
have made a high-level commitment, through
Environment Department Papers
A Short History of Indigenous Legal Treatment in Latin America
either their constitution, international
agreements (such as ILO 169), or both, to
indigenous rights, but they have not followed
through with an adequate regulatory
framework, and they generally have not made
significant progress in recognizing indigenous
land rights as the other countries have. This
group includes Mexico, Guatemala, Honduras,
Nicaragua, Venezuela, and Argentina.
Deficient legal framework: These countries
have not entered into any high-level
commitments on indigenous rights at the legal
level, and they have made little effort to
respond to indigenous requests for legal
recognition of their land claims. This group
includes El Salvador, Guyana, Suriname, and
Uruguay.
Box 2
Typology of Indigenous Legal Regimes
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Superior legal
framework
Legal framework
in progress
Deficient legal
framework
Bolivia
Brazil
Colombia
Costa Rica
Panama
Paraguay
Peru
Argentina
Guatemala
Honduras
Mexico
Nicaragua
Venezuela
El Salvador
Guyana
Suriname
Uruguay
3
2
Description of Indigenous Land
Tenure Regimes in Selected
Countries of Latin America
In this section, we will review the current legal
frameworks for indigenous land tenure in
selected countries, illustrating the range of
experience in this issue across Latin America. In
the following section, we will look more closely
at several countries that are relatively advanced
in terms of legally defining indigenous land
tenure.
Countries with a Superior Legal
Framework
These countries—Bolivia, Brazil, Colombia,
Costa Rica, Panama, Paraguay, and Peru—all
have high-level judicial instruments
(constitutions or international agreements)
recognizing indigenous land rights, as well as
some national legal and regulatory framework
operationalizing the high-level instruments.
These countries provide the best practice models
for land legalization, despite their shortcomings.
Nevertheless, there are important differences
between them, which the following country by
country discussion will make apparent.
Bolivia
Although it has the largest proportion of
indigenous population in South America, and
despite a powerful popular movement, Bolivia
only recently began to offer legal redress to
indigenous land claims. The first measures
were taken as a result of popular mobilization of
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the Amazonian and Chaco indigenous groups at
the end of the 1980s and early 1990s, when the
national government issued a series of executive
decrees recognizing some areas as being under
indigenous control and possession. Some
sectors of Bolivian society regarded these
decrees as unconstitutional. The constitutional
reform of 1994 contained a clear recognition of
the special rights of indigenous people and
communities, including the character as legal
incorporation (personería jurídica) of indigenous
groups, their right to full ownership of their
ancestral lands, and their autonomy to exercise
their own traditional forms of internal
government and administration.
In 1996, the National Agrarian Reform Service
Law was promulgated; along with the
regulations later issued for that law, it defines
the institutions and procedures for legal
recognition of indigenous lands. Despite
serious obstacles, caused by the bureaucratic
requirements of the law, budgetary limitations,
the country’s political crisis, and opposition to
the delimitation of indigenous lands, Bolivia has
managed to recognize some 5.4 million hectares
of indigenous lands to date. The 1996 law,
however, was considered flawed by indigenous
groups for several reasons: the technical rules
for deciding land allocations, for example, led to
smaller areas than the indigenous groups
claimed, and gave priority to titling agricultural
colonists on indigenous-claimed land, leading to
the fragmentation of indigenous land claims. A
5
Models for Recognizing Indigenous Land Rights in Latin America
mass protest in 2000 led to the correction of
some of the flawed regulations. Serious
obstacles to indigenous titling remain in Bolivia,
including the complexity of the bureaucratic
procedures required for land recognition, as
well as the inability of indigenous communities
to define their own administrative and
management models for their lands.
Brazil
At the beginning of the 20th century, in reaction
to the harm inflicted on indigenous groups as a
result of official policies promoting the
exploitation and settlement of the country’s
tropical forests, Brazil adopted constitutional
provisions aimed at establishing a paternalistic
system in which indigenous people would be
protected by the state. It is generally believed
that this policy was inspired by a military
officer with humanitarian interests, General
Cándido Mariano Silva Rondón, after whom the
state of Rondonia was later named. A series of
institutions devoted to protecting Brazil’s
indigenous people were created: first the Indian
Protection Service (SPI), around 1911, that was
disbanded in 1967 when massive corruption in
the agency was exposed; followed by the
National Council for Indian Protection (CNPI)
some years later and then the National Indian
Foundation (FUNAI) in 1968. In 1988, Brazil
adopted a new constitution that stipulated that
all indigenous lands in the country would be
demarcated within a space of five years. Article
231 of the Brazilian constitution states that
indigenous people have primary, inherent and
unalterable rights to their lands they
permanently inhabit and use for productive
activity, preservation of natural resources and
cultural and spiritual well-being. Indigenous
lands are the property of the State; however, the
regularization process recognizes and
6
formalizes indigenous rights and specifically
guarantees perpetual usufruct by indigenous
people of their lands.
In 1995, Brazil adopted new legislation
revamping the process of indigenous lands
regularization. This was Decree 1775 which
replaced the previous set of rules and
regulations, Decree 22. The addition of a civil
administrative grievance procedure and a 90
day period of contention, during which nonIndians can challenge the identification and
delimitation of indigenous lands, was protested
by national and international NGOs,
particularly because decree was retroactive and
because of concerns that already delimited
lands would be reduced in size. Despite the
protests, the vast majority of claims and
grievances to date against existing indigenous
lands have been dismissed , and the primacy of
indigenous rights upheld.
The resulting demarcation and recognition of
indigenous lands has been truly impressive. In
total, some 103.7 million hectares, or more than
12% of the national territory of Brazil, have been
recognized as indigenous lands, possessed by
indigenous groups representing only 2% of the
national population. Serious problems remain,
however. Many indigenous lands continue to
be invaded by landless campesinos or miners,
and some of the lands that have been
recognized are tied up in court with legal
challenges from third parties. Another issue of
concern is that 15 years after the passage of the
new Constitution, the Indian Statute, which is in
clear contradiction to the Constitution, remains
in force.
Colombia
In Colombia, the new constitution adopted in
1991 was the first to clearly recognize the
Environment Department Papers
Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America
special rights of indigenous peoples. Even
before this high-level juridical support to
indigenous land recognition, however,
Colombia had had an active program of
recognizing indigenous lands, a product of its
execution of the agrarian reform laws that were
passed starting in the 1960s. At first these lands
had the character of simple provisional reserves;
later the concept of indigenous reservations
(resguardos) was adopted from the old Indian
Law, which guaranteed the indigenous
communities full ownership and a high degree
of autonomy in management of their lands.
The Colombian judicial framework grants many
rights to the indigenous peoples, which are
aimed at guaranteeing the protection of their
social and cultural integrity. In 1989 the
Colombian Government ratified Convention
No.169 of the International Labor Organization
(ILO) concerning the rights of indigenous and
tribal peoples (Law 165, 1994.) The Political
Constitution of 1991 defines the Colombian
nation as multi-ethnic and pluri-cultural, and
advanced the right of indigenous peoples to
manage the political and administrative affairs
of their territories. In addition, indigenous
peoples are defining their own plans for landuse and environmental management, which
provide the framework for the sustainable use
of natural resources in their territories, based on
their traditional knowledge
The 1991 Political Constitution also opened the
space for the creation of a new territorial
division within Colombia, the Indigenous
Territorial Entity (ETI). The proposed law
regarding the establishment of the ETIs has been
approved by the Senate and is currently being
discussed in Congress. In the meantime,
indigenous authorities in the resguardos are
legally responsible for land-use and social
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programs in these indigenous territories, and
they receive state funds for their own health,
education and social programs.
In 2001, the Colombian Government presented a
reform to two articles in the Political
Constitution, to guarantee the stability of state
funds for social investment in territorial entities
including indigenous resguardos. Law 715 of
2001 was subsequently enacted, to regulate the
distribution of these funds, and their use. The
same law establishes that indigenous resguardos
will receive a specified percentage of the
available funding each year, to be used for
education, health, housing, drinking water and
productive projects.
Costa Rica
Costa Rica does not have specific norms on
indigenous peoples in its Constitution, and it
only ratified ILO 169 in 1993. Nevertheless, like
other countries in the region, Costa Rica has
historically established programs to benefit the
indigenous population. In 1973, the National
Indigenous Affairs Commission (CONAI) was
created and made responsible for dealing with
indigenous demands, including land claims and
the task of “integrating indigenous communities
into the process of development.” Four years
later, the Indigenous Law of Costa Rica (Law
6172 of 1977) was issued, which gave more
support to the territorial claims, separate
cultural identity, and administrative autonomy
of indigenous groups. It also decreed that
indigenous reserves are inalienable1,
imprescriptible2, untransferable3, and
exclusively reserved to the indigenous
communities that inhabit them. Although there
has been serious criticism of the existing legal
protections for indigenous people, and although
the state has been working on a new legal
7
Models for Recognizing Indigenous Land Rights in Latin America
formulation that would be more consistent with
ILO 169 and current thinking on indigenous
rights, Costa Rica has made significant progress
in recognizing indigenous lands under the
existing legal framework. Various decisions of
the country’s Supreme Court have also
contributed to defining an acceptable degree of
autonomy for indigenous communities in
management of their legally-recognized lands.
Panama
The Constitution of 1972, for the first time in
Panamanian history, declared that indigenous
lands must be given as property, and not under
some type of usufruct arrangement. Using this
disposition, the Legislative Assembly has
recognized indigenous lands through a special
law for each indigenous group, in which the
legal figure of the comarca or collective
landholding is created. To date, six comarcas
have been created in Panama, covering more
than 20% of the national territory. Each is
governed by an executive decree, which gives
the indigenous group wide latitude for
administering its lands, under the general rules
established in the legislative act creating that
comarca. Interestingly, Panama has not ratified
ILO 169, although it had previously ratified ILO
107 in 1971. Nevertheless, its model of land
regularization and indigenous rights is
recognized as innovative and effective,
respectful of indigenous autonomy and
supportive of community initiative.
Paraguay
In 1981, Paraguay passed the Indigenous
Communities Statute (Law 904), which gave
indigenous peoples certain rights, including the
right of legal incorporation and the right to
obtain the land necessary for their survival and
8
development. In 1992, the country adopted a
new Constitution which recognizes the special
rights of the indigenous population and
recognizes them as ethnic groups with a
separate culture identity. One year later,
Paraguay ratified ILO 169.
Like other constitutions in Latin America, the
Paraguayan Constitution gives indigenous
lands the attributes of being inalienable,
unmortgageable4, and imprescriptible. The
constitution and the Indigenous Community
Law also guarantee indigenous groups a high
degree of autonomy in the management of their
lands and conduct of their internal affairs.
Unfortunately, these general laws have not been
supported by a body of regulations that defines
precisely what powers the indigenous
communities have, resulting in the potential for
conflict between the communities and the
national government and its specialized
agencies.
In practice, experience with the implementation
of these higher-level legal norms has been
mixed. With the passage of the Indigenous
Communities Statute, the state created the
Paraguayan Indigenous Institute (INDI), a
dependency of the Ministry of Defense; INDI
has wide powers to enforce the guarantee of
indigenous rights, including land rights. On
land rights, INDI acts in close collaboration with
the Institute of Rural Wellbeing (IBR), the
agrarian reform agency in Paraguay. INDI has
received some financial support from the
government, as well as from some churches and
humanitarian agencies. Nevertheless, excepting
for some small areas that indigenous
communities have managed to retain over the
years, the lands they claim have to be purchased
from current owners, at high cost; if the owners
are not interested in selling willingly, they must
Environment Department Papers
Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America
be expropriated by an act of Congress. A recent
study showed that in the Eastern Region of the
country, where according to the law the
communities require a minimum of 240,000
hectares, only slightly more than 66,000 hectares
had been passed to them by 2002; in the
Western Region, where they should have at least
1.2 million hectares, they have only been given
about 972,000 hectares. This same study shows
that after an unsuccessful attempt on the part of
the government in 2002 to reduce INDI’s
functions and programs, its budget and staff
were cut. The resulting situation is even more
problematic for the indigenous communities,
since some of the land that has already been
given to them has not yet been fully paid for,
and INDI’s current insolvency could preclude
finalization of the payments.
internal governance of indigenous communities,
the relatively long and rich experience of Peru
in this area is worth close examination.
Countries with a Legal Framework in
Progress
These countries have made a high-level
commitment to indigenous rights, in their
constitution or the adoption of international
legal agreements or both, but they have not
followed through with an adequate regulatory
framework. Despite this, they offer some
interesting insights into the process of land
regularization. The countries included in this
section are Ecuador, Guatemala, Honduras,
Mexico, Nicaragua, and Venezuela.
Ecuador
Peru
Peru has a long and rich legislative history in
favor of indigenous rights, and in particular
land rights. The constitutional provisions in
Peru that recognize indigenous rights are
probably the earliest in the Americas. The
country also ratified ILO 107 and, in 1994, ILO
169. It was also the first country to adopt
special legal regimes for the governing of
indigenous communities, in the 70s and 80s.
The first Law of Native Communities was
adopted in 1974; a later law on the same topic is
still in force. The 1979 Constitution recognized
indigenous lands as inalienable, unmortgageable, and imprescriptible; the current
Constitution (1993) represents a step backward
on this issue, weakening the legal treatment of
indigenous lands by making them subject to
being bought and sold. Despite serious
obstacles, gaps, and ambiguities in the
treatment of different indigenous issues,
including the land legalization model and the
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In 1998, Ecuador approved its current
constitution and at the same time ratified ILO
169. Like the Venezuelan Constitution (see
below), the Ecuadorian Constitution guarantees
a wide gamut of indigenous rights; as in
Venezuela also, the Ecuadorian Constitution
uses the future tense to refer to indigenous
rights, which seems to imply that further action
by the national legislature is necessary in order
to fully establish those rights. Even before
approving the new Constitution, Ecuador
managed to regularize a significant extension of
indigenous lands, utilizing the existing agrarian
legislation. Because of the lack of specific
indigenous procedures for land recognition,
these lands were titled not to legally recognized
ethnic groups or communities, but rather using
whatever form of organization, or lack of
organization, the groups had at the moment the
titles were granted. Thus, indigenous lands
have been titled to individuals, cooperatives,
Centers (“Centros”) or Associations of Centers
9
Models for Recognizing Indigenous Land Rights in Latin America
(Centers are an organizational form introduced
by religious missionaries among some
indigenous groups), Communes (a legal figure
established by several laws in 1937,
characterized by communal ownership), and
ethnic territories. The only one of these that has
any relationship to the indigenous tradition is
the Commune, but this was only used in the
highlands, and not in the Amazon, where the
vast majority of the titled land was located.
The lack of legal norms associated with the
titled entities led to the application of the Civil
Code provisions for communal property being
applied to these titles. While the new
Constitution says that indigenous lands are
inalienable and cannot enter into the free
market in property, it appears to require that the
characteristic of inalienability be granted
through a subsequent law passed by the
legislature, such that all the lands that have
been titled would need an additional legal
action in order to become inalienable. As can be
seen from this analysis, the Ecuadorian
legislature urgently needs to issue the laws
necessary to support the constitutional
declarations on indigenous rights, including not
only the specification of an appropriate
procedure for titling indigenous lands, but also
a legal framework for the incorporation of
indigenous groups and a model for land
management after lands are titled to those
groups.
Guatemala
The Constitution of 1985, which is still in force,
recognizes the right of indigenous communities
to the lands they have historically utilized and
proclaims the responsibility of the state to
provide state-owned lands for those groups that
need lands “for their development.” In practice,
10
neither the constitutional provisions nor the
ratification of ILO 169 by Guatemala in 1996 has
led to much progress on this issue. Guatemala
has relied on its body of agrarian laws to
distribute lands to indigenous communities,
which has led to land being granted in a
hodgepodge of forms, depending on the
particular law being used or the government
agency involved. Because of this, some lands
have been issued under individual titles, while
others have been titled as “collective agrarian
patrimony” or in the form of cooperatives.
Since most of these titles required payment by
the new title holders, the titles were precarious,
subject to being revoked if the payments were
not made on time. It appears that very few
indigenous families were able to obtain their
definitive titles in the end, after completing
payments spread out over a period of 10 to15
years.
These lands distributed under the agrarian
reform laws have not afforded indigenous
communities the ability to manage their
territories and their internal affairs according to
their own traditions, as opposed to civil law.
For the vast majority of the communal lands
that the indigenous communities still control,
they have only very precarious titles, or no titles
at all. The only alternative model for legal
possession of their land is in the form of a nonprofit civil association under the Civil Code, a
modality that exposes them to all the risks of
private property and of the free market in land,
which can be brought about at the behest of any
one of the members of the association.
In the 1995 peace accords that put an end to the
civil war in Guatemala, the government
committed itself to forming a commission with
indigenous representation to propose
procedures and institutional mechanisms for
Environment Department Papers
Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America
guaranteeing indigenous land tenure, as well as
defining the use and management of natural
resources on indigenous lands. While the
members of the commission have been named,
there has been little additional progress to date.
The 1999 Law of the Land Fund, according to its
preamble, was intended to operationalize the
promises about indigenous land titling made in
the peace accords, but in effect it has only three
dispositions that concern the indigenous
population: it promises technical assistance to
indigenous groups in obtaining legal
incorporation (personería jurídica); it promises
that the Land Fund will not to be applied to
lands held by indigenous groups; and it also
protects indigenous sacred and ceremonial sites
from acquisition under the program. It does
not, however, define procedures for indigenous
land legalization, leaving Guatemala without
any specific legislation doing so, despite the
commitments in the Constitution and the peace
accords.
Honduras
In its Constitution of 1982, Honduras recognizes
the responsibility of the state to “establish
measures for the protection of the rights and
interests of the indigenous communities that
exist in the country, and especially of the lands
and forests in which they live.” The
Agricultural Sector Modernization and
Development Law (Decree 31-92), passed in
1992, promised to title community lands to
indigenous communities for free, but this
provision has never been applied.
In 1995, Honduras ratified ILO 169, and in 1997
the state decreed the “creation of a commission
to prepare a draft law to regulate issues related
to the indigenous and tribal populations.”
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Nevertheless, there has been very little progress
in recognizing indigenous land rights. While
some land has been adjudicated to indigenous
communities in the last few decades, this has
been done using the general agrarian reform
laws, and not under a special land regime better
suited to their traditional landholding practices.
Serious contradictions between the agrarian
reform laws and other regulations, especially
those governing forests and environmental
issues, have further slowed and weakened any
progress toward adopting a real policy to
recognize indigenous territorial rights in the
country. The very few properties that have been
adjudicated in favor of indigenous peoples,
through the efforts of missionaries or, more
recently, under the agrarian reform laws, have
been granted as regular property under the civil
code, which impedes the autonomy of the
communities in managing their lands.
Mexico
Historically, Mexico has been a leader on
indigenous policy-making in Latin America.
The 1917 Constitution, product of the first
revolution of the 20th century in 1910,
guarantees a wide range of rights to campesinos,
within a framework of communal lands. Article
27 of the original text recognizes “communal
property for tribes and peoples who de facto or
de jure will retain their communal status, and
who will continue to enjoy in common the use
of the lands, forests, and waters that belong to
them or that have been returned to them under
the law of 1915.” Later, the concepts of tribes
and peoples were replaced by the concepts of
ejidos and communal populations which are still
in effect today. From then on, the ejido was the
official form of collective production of
campesino communities, within which ethnicity
was obscured.
11
Models for Recognizing Indigenous Land Rights in Latin America
From the beginning of the 19th century, there is
documentary evidence of indigenous groups
that insisted on the return of their ancestral
lands and the recognition of their own forms of
communal property. In 1990, Mexico was the
first Latin American country to ratify ILO
Convention 169. In 1992, Article 27 of the
Constitution was reformed, allowing the
parcelization and privatization of the ejidos, and
the fourth Article recognized the multicultural
composition of the country’s indigenous
population
In 1996, the Agreements of San Andrés were
signed in Chiapas, and both sides of that
conflict committed to the construction of a new
national compact defined by the cultural
differences between Mexico’s citizens.
Nevertheless, the expectations of the indigenous
peoples were not fulfilled. The proposed law on
“Indigenous Rights and Cultures,” sent to
Congress in 2001, was substantially modified,
especially in terms of the autonomy,
responsibility, and rights of the indigenous
peoples. The Law characterizes indigenous
peoples as entities of public interest, rather than
legal entities, and it does not define important
concepts such as territory, habitat, and lands. It
also maintains the reform of Article 27, which
allows for the alienation of ejidal lands.
Nicaragua
In 1987, Nicaragua made great strides forward
in formal recognition of indigenous land rights
on the Atlantic Coast with the passage of a new
constitution and the Autonomy Law (Law 28 of
1987). These legal instruments granted political
and administrative autonomy to the Atlantic
Region of Nicaragua, where the majority of the
indigenous population lives, and they
committed the national government to
12
recognizing the indigenous claims to the land
they have traditionally occupied. Sixteen years
later, Nicaragua has not recognized more than
5% of the lands claimed by indigenous groups.
Although the Autonomy Law defines
indigenous lands as inalienable, intransferable,
unmortgageable, and imprescriptible, the
recognition of indigenous lands that has
occurred has been carried out under the normal
agrarian laws, without any special regimen that
integrates traditional indigenous usage and
norms. While this may not affect the
intangibility5 of these lands, it clearly puts the
indigenous groups in a vulnerable position in
which they could easily lose their lands, either
de jure or de facto. In December 2002, after a
long struggle by the indigenous groups, the
National Assembly approved a law which both
defines the procedures for recognizing
indigenous lands and provides a model for the
administration and management of those
territories. It is not clear whether there is
political will in Nicaragua at this point to
enforce this law.
Venezuela
Venezuela adopted its current constitution in
1999, and it gives full recognition to indigenous
rights. In 2002, the country also ratified ILO
169. Before this time, the state had recognized
indigenous lands under the usual procedures
for titling lands to campesinos. These lands were
given in collective form, but since no legal
recognition of indigenous groups existed, they
were given to groups of particular individuals
by name. In the absence of legislation providing
for their management, these lands came under
the Civil Code, and this imposed serious
limitations on their use by indigenous groups.
The new constitution, like the Ecuadorian,
describes indigenous rights in the future tense,
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Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America
leading to the conclusion by some that these
rights must be embodied in specific laws by the
national legislature before taking effect, and to
date this has not happened. The Law for
Demarcation and Guarantee of Habitat and
Lands for Indigenous Peoples, passed in 2001,
did not do so, although it did define some
concepts and new strategies of the state on
indigenous issues. Currently, the National
Assembly has before it a new draft law, called
the Law of Indigenous Peoples, introduced by
indigenous legislators in November of 2002,
which would define not only the procedures for
recognizing indigenous lands, but also
indigenous autonomy, the authority of
indigenous representatives and their
relationship to the state, as well as providing the
administrative model for the legally recognized
indigenous territories.
Countries with a Deficient Legal
Framework
These countries have not entered into higherlevel agreements on indigenous land rights, and
they have made little or no effort to respond to
indigenous demands for legal recognition of
their land claims. They include El Salvador,
Guyana, and Suriname.
El Salvador
El Salvador is a good illustration of a country in
which the legal framework protecting
indigenous rights is tenuous. The 1983
Salvadoran Constitution establishes equal
treatment for all people, regardless of
nationality, race, gender, or religion. The
Constitution also recognizes the existence of
indigenous national languages which should be
respected and protected by law. It also states
that “the artistic, historic, and archaeological
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treasures of the country form part of the
Salvadoran cultural heritage, which is placed
under the protection of the state and is subject
to special laws for its conservation.” There is no
explicit recognition in the Constitution of the
existence of ethnic groups, indigenous peoples,
or separate cultures as part of the national
population, but the clauses mentioned above
could help form a vague case for legal
acceptance by the Salvadoran state of various
cultures within the national polity. El Salvador
did ratify ILO Convention 107 in 1958, but this
document alone is not sufficient to support a
policy of land recognition for indigenous
peoples.
Guyana
Guyana’s 1980 Constitution, like El Salvador’s,
contains general assurances of the importance
of the different communities that comprise the
national population, and along with its 1996
constitutional reforms and Legislative Act #11 of
2000, establishes the obligation of the state to
create a Commission for Ethnic Relations. The
Commission’s responsibility is to fight
discrimination against and promote the
development and equality of opportunity for
persons belonging to the country’s minority
ethnic groups. Several additional laws—the
Amerindian Law of 1951, amended in 1976 and
subsequently, and the Law of the Amerindian
Lands Commission, passed in 1966—did
establish legal recognition of indigenous land
rights. However, the procedures, requirements,
and institutions that these laws establish are so
cumbersome, incomplete, and ambiguous, and
grant so much discretion to the executive
branch while leaving the indigenous groups
without any ability to intervene in the process,
that in practicality they have had very little
effect. Guyana has never passed the laws
13
Models for Recognizing Indigenous Land Rights in Latin America
required to establish the above-mentioned
Commission for Ethnic Relations, and it has not
ratified ILO 169.
Suriname
Laws dating to its period as a Dutch colony
decree that indigenous settlements and
Maroons6 be respected, but this respect appears
to have been more a question of common
courtesy than a legal treatment. Suriname
gained its independence in 1975, and its
Constitution of 1987, reformed in 1992, does not
explicitly recognize the ethnic or cultural
diversity of the population, although it does
prohibit any type of discrimination.
rebel groups signed the “Agreement for
Conciliation and National Development.” In
this document, the government promised to
pass a law recognizing the territorial claims of
indigenous groups living in tribal communities,
generating the institutions and procedures to
ensure land titling and land access for both
subsistence and market-oriented exploitation by
indigenous groups. In this same agreement, the
government promised to initiate a national
dialogue on the ratification of ILO 169. None of
these promises were ever fulfilled, and to date,
Suriname lacks even the minimal legal
framework necessary to recognize the existence
of its indigenous peoples, let alone to guarantee
their rights.
In 1992, to put an end to an armed uprising that
had divided the country, the government and
14
Environment Department Papers
3
Common Problems in the Legal
Framework for Recognition of
Indigenous Lands
There are many common threads among
countries in the preceding discussion, both in
the elements that lead to successful legal
frameworks for the support of indigenous lands,
and those that lead to less successful outcomes.
Common problems affecting the legal
framework for indigenous lands in Latin
America include the following:
•
•
Failure to develop the body of laws
necessary to operationalize the rights
guaranteed by the constitution or
international treaties. For example, in
Ecuador, while the Constitution guarantees
indigenous land rights, no law has been
passed to define how they are to be granted.
The only course of action available is to use
the Civil Code, which is actually in conflict
with some constitutionally guaranteed
characteristics of indigenous land, such as
inalienability.
Time-consuming, overly complex, or
poorly conceived procedures for gaining
legal recognition of indigenous lands. In
Bolivia, for example, the procedures
required in order to resolve conflicting land
claims and assign indigenous land rights are
extremely slow and burdensome. In the
case of Peru, indigenous groups seeking
their lands must first be legally
incorporated, a procedure that can itself
take as long as gaining the recognition of the
indigenous territory.
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•
Imprecision in the writing of indigenous
legislation. In many cases, the legislation
uses terms that are not defined, and which
are imprecise in meaning, or to which
different definitions have been given in
different cases. Examples of this problem
include the use of the concept of
“autonomy” and the mention of
“renewable” and “non-renewable natural
resources,” all of which can be interpreted
in various ways.
•
Failure to carry out adequate consultation
with indigenous communities. While a
few states, such as Ecuador, Colombia, and
Peru, have tried to define participation in a
meaningful way, most states have not
engaged in meaningful consultation with
indigenous communities over issues that
are in their vital interest. Often consultation
is in reality simply the act of informing
indigenous representatives of programs that
are already approved and about to begin,
without giving them time to study the
proposals, inform their own communities,
or properly comment on them.
•
Lack of legal definition of ownership
rights over, and use and administration of,
natural resources in indigenous territories.
There is nothing intrinsically difficult about
precisely defining the rights indigenous
peoples have over natural resources on their
lands. Nevertheless, in the vast majority of
15
Models for Recognizing Indigenous Land Rights in Latin America
the Latin American countries this legal
definition is either ambiguous or completely
lacking. A contributing factor to this
situation is probably the desire of states not
to lose control over the income from
concessions of valuable natural resources.
Where indigenous land rights are not
recognized, rights over natural resource use
are unlikely to be legally defined.
Conversely, where indigenous land rights
are well defined, such as in Colombia and
Panama, indigenous rights over natural
resources have been recognized without
great controversy.
•
16
Lack of adequate legal definition of the
management of indigenous territories that
overlap with national parks or other
protected areas. In many countries, the
areas that harbor the most important
biodiversity are the ancestral lands of
indigenous peoples. Since the region’s legal
system cannot recognize two titles to the
same land, there is often a conflict between
areas that have been declared some type of
protected area by the national government,
but which are claimed as ancestral territory
by indigenous people. While a clear
solution would be to recognize indigenous
land with restrictions that would preserve
its biodiversity values, states have been
reluctant to do so, perhaps because, as
mentioned above, they fear losing control of
the invaluable natural resources of those
areas. Nevertheless, recently Colombia and
Bolivia have made some progress towards
resolving these contradictions, which gives
hope that they are not insoluble.
Environment Department Papers
4
Case Studies in Indigenous Land
Tenure and Its Implications for
Natural Resources Management
In this section, we will focus in on four of the
countries with superior legal frameworks for
indigenous land tenure—Colombia, Costa Rica,
Panama, and Peru—and examine how the
differing bodies of law in each country
contribute to or undermine the ability of
indigenous people to manage their natural
resources. The laws governing land rights
recognition in these countries have several key
characteristics which determine the degree of
security and authority the indigenous people
exercise over the land the state has recognized
as theirs. These include the following:
•
Land tenure regime: The character of the
right over land that has been recognized,
which can range from outright (fee simple)
ownership through several types of
restricted ownership to simple use rights
(usufruct)
•
Territorial recognition: Recognition of land
in a form that corresponds to the concept of
an indigenous territory, as defined by ILO
169
•
Natural resources rights: The sorts of rights
over natural resources ownership,
administration, and use granted as a
consequence of the land right
•
Tenure security: The degree of security of
the type of land title
Biodiversity Series
•
Autonomy: The amount of autonomy in
managing their own affairs that is accorded
to an indigenous group as a consequence of
their land rights, including legal recognition
as an indigenous group (personería jurídica),
and their ability to use their own traditional
legal and justice systems
•
Legal recourse: The legal actions to which
they have recourse in order to defend their
lands.
These characteristics also shape the ability of
indigenous peoples to participate actively in the
conservation of the ecosystems and natural
resources on their lands, and they have been
repeatedly identified by indigenous
organizations as the key attributes necessary for
their acting as effective agents of conservation.
Below, we examine each of these characteristics
for each of the countries and analyze the
implications for indigenous management of
their lands. This information is summarized in
Box 3.
Land Tenure Regime
In Costa Rica, the laws and regulations that
treat the subject of indigenous land tenure refer
to indigenous lands as “reserves.” Traditionally,
in Latin America this word has referred to lands
dedicated to a specific purpose, but over which
the state retains final ownership. During the
17
Models for Recognizing Indigenous Land Rights in Latin America
Box 3
Key Characteristics of Indigenous Land Tenure, by Country
Costa Rica
Panama
Colombia
Land tenure
regime
Fee simple.
Fee simple.
Fee simple.
Territorial
recognition
Territories,
according to ILO
169, but in
practice very few
of the recognized
indigenous areas
could be
described as
territories.
Not legally
defined, but in
practice
indigenous lands
function as
territories.
Natural resources
rights
Resource
property rights
not addressed in
indigenous laws;
forest property
rights according
to Civil Code;
guaran teed
exclusive rights in
use and
administration of
resources on
their lands.
No clear legal
definition. In
practice, wide
power to
administer and
use natural
resources on
their lands.
Territories,
according to ILO
169. In practice,
indigenous lands
are recognized as
reservation lands;
courts have
supported full
indigenous
control as a
communal
territorial space.
No clear legal
definition, but the
courts have
supported
exclusive rights of
indigenous
communities to
administer and
use the natural
resources on
their lands.
Tenure security
Strong tenure
security; no
apparent
contradictions
with other laws.
Very strong
tenure security,
since each
comarca is
created by its
own individual
law.
Strong tenure
security; no
apparent
contradictions
with other laws.
Peru
Fee simple over
agricultural lands;
usufruct over
forest lands.
Territories,
according to ILO
169. In practice,
indigenous lands
do not function as
territories, due to
reduced size,
limited rights over
forest land, and
the fact that lands
can be bought
and sold.
Legally, the state
owns all
renewable and
non -renewable
resources.
Indigenous
communities
have exclusive
rights to use
resources on
their land.
Communities
share
responsibility for
administration of
resources with
the state.
Laws provide for
strong tenure
security, but in
practice,
government
norms and plans
are detrimental to
the security of
collective
landholdings.
(continued)
18
Environment Department Papers
Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources Management
Box 3 (continued)
Key Characteristics of Indigenous Land Tenure, by Country
Costa Rica
Panama
Colombia
Autonomy
Legal
incorporation of
indigenous
groups is
recognized;
cu stomary law for
internal affairs;
wide powers to
administer their
lands and
community
affairs.
Legal recourse
Same rights as
other citizens.
Various
institutions
charged with
defending
indigenous rights.
Legal
incorporation of
indigenous
groups with
comarcas is
recognized; wide
powers to
administer their
lands and internal
affairs according
to customary law;
reco gnition of
comarcas as
political and
administrative
entities.
Comarca
authorities are
public servants
and can initiate
judicial actions.
Various
institutions
charged with
defending
indigenous rights.
Legal
incorporation of
indigenous
groups is
recognized; wide
powers to
administer their
lands and internal
affairs according
to customary
laws;
reservations are
seen as political
and
administrative
entities.
Indigenous
groups can
initiate judicial
actions. Various
institutions
charged with
defending
indigenous rights.
Peru
Legal
incorporation of
indigenous
groups is
recognized;
formally, wide
powers to
administer their
lands and internal
affairs according
to customary
laws, but in
practice the state
exercises
substantial
control.
Same rights as
other citizens.
Little judicial
record of
upholding
indigenous rights.
Various
institutions
charged with
defending
indigenous rights.
first phase of indigenous land recognition in
Costa Rica, it appears that recognized lands
fulfilled this traditional role as reserves. But
Law 6172 of 1977 decrees that indigenous lands
are “the property of the communities,” and
subsequent Supreme Court decisions have
confirmed the full ownership of their lands by
indigenous communities.
the Kuna territories in San Blas were recognized
in this fashion. The 1972 Constitution, however,
guarantees indigenous communities “the
reservation of the necessary lands, and
communal ownership of those lands, to achieve
their social and economic development,” and all
the laws that have created comarcas have done
so recognizing full indigenous ownership.
Similarly, in Panama in the years preceding the
Constitution of 1972, recognition of indigenous
territories was carried out under the legal
concept of reserves, and the law made clear that
final ownership rested with the state. Some of
In Colombia, all lands that are recognized to
indigenous peoples are recognized in the form
of resguardos, or indigenous reservations, a legal
concept that dates to colonial times and which
has been given full recognition in the
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19
Models for Recognizing Indigenous Land Rights in Latin America
Constitution. Historically, these reservation
lands have always been seen as belonging as a
communal territorial space to the indigenous
groups. The highest tribunals in Colombia have
repeatedly acknowledged the full ownership of
the indigenous peoples of their lands.
In Peru, the current Constitution clearly
recognizes the different sorts of property in land
(individual, communal, and associative), but
does not state which type is appropriate for
indigenous communities. The first Law of
Native Communities (1974) clearly stated that
indigenous communities would have full
property rights over their lands. But the second
Law, which is still in force, makes an exception
for forest lands, which are to be “ceded in
usufruct” to indigenous groups, while ultimate
ownership is reserved to the state.
Territorial Recognition
Three of the four case study countries (Costa
Rica, Colombia, and Peru) have ratified ILO
169, and consequently have formally accepted
that indigenous groups are to be considered
peoples and that their lands should be
recognized under the legal concept of territories
as defined in that Convention. While there is
not complete consensus on what this actually
means, for purposes of this paper, we consider
that the status of peoples means that indigenous
groups are associations that are perpetual and
not transitory, in contrast to legal associations
such as cooperatives, which can be established
and dissolved over time. The legal concept of
indigenous territory is one in which indigenous
peoples retain full ownership of their lands.
Territories have the character of being
inalienable, unmortgageable and imprescriptible, so that indigenous territories, like the
peoples that own them, are perpetual in nature.
20
Among our case studies, Costa Rica and
Colombia have ratified ILO 169, and have
fulfilled their obligations vis-à-vis this
international agreement by embodying in their
laws or constitutions language guaranteeing
that indigenous lands are inalienable,
unmortgageable and imprescriptible, making
them virtually untouchable legally. Although
Peru has also ratified ILO 169, its current
constitution gives indigenous people the right to
buy and sell their lands, and although it states
the imprescriptible character of the lands,
limitations occur in the event that lands are
abandoned; the territoriality of indigenous
lands proclaimed in ILO 169 is not therefore
supported by Peruvian law. Panama is a
particularly interesting case, in marked contrast
to Peru. While Panama has not ratified ILO 169,
the body of laws that has supported the
establishment of the comarcas clearly
demonstrates that Panama, more than any other
Latin American country, recognizes the
territorial nature of indigenous lands and the
status as peoples of indigenous communities.
This can be deduced from the size of the
territories recognized to them, their authority
over use and management of their natural
resources, and from the autonomy of their selfgovernment within their territories.
Natural Resources Rights
The majority of indigenous peoples living in
forest areas depend on the natural resources of
their lands to fulfill their subsistence needs.
Hunting, fishing, gathering of forest products,
and small garden plots still form the basis of
their household economy. The security and
permanence of their control and use of the
natural resource base is actually more important
to most indigenous groups than direct
ownership of the land itself. The demand for
Environment Department Papers
Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources Management
ownership, in fact, derives from the need to
ensure their access to these resources, so it is of
particular importance to examine how the
different national-level legal regimes handle this
aspect of indigenous ownership.
In Costa Rica, the legal norms do not expressly
state whether the state or the indigenous groups
control natural resources on indigenous lands.
The Indigenous Law and the Forestry Law seem
to indicate, however, that at least the forest itself
would belong to the titled indigenous
communities, since titled lands are considered
to be under private ownership, which includes
the ownership of forests on those lands. The
indigenous law has two other key provisions
that govern natural resources rights. One says
that “the communities will have full legal
power to acquire rights and contract obligations
of any type,” while the other states that “only
these indigenous people will be able to
construct houses, fell trees, exploit timber
resources or plant crops for their own benefit.”
These provisions demonstrate that the
indigenous communities have wide
administrative power over natural resources on
their land, and that the right to utilize those
resources is exclusive to their communities.
In Panama, it is not yet clear if the state
recognizes the authority of indigenous
communities over natural resources on comarca
lands. The Constitution defines the goods and
rights of the State without referring to forests
and wildlife, which would seem to imply that
on private lands, the titleholder would have the
right to those natural resources. The laws that
recognize the comarcas do not explicitly define
authority over natural resources, and the
Organic Law (carta orgánica) of most of the
comarcas also do not address this topic.
However, the Organic Law of the EmberáWounaan comarca in the Darién states that “the
Biodiversity Series
natural resources that exist in the comarca are
the collective patrimony of the EmberáWounaan people.” Under the assumption that
this provision is not meant to give a right to the
Emberá-Wounaan that other indigenous groups
do not enjoy, this statement clearly indicates an
intention to grant indigenous communities
control over at least some natural resources.
Finally, all the laws and regulations of the
comarcas do grant a high degree of autonomy
and authority to the indigenous communities in
the administration, management, and use of
natural resources on their lands.
In Colombia, neither the Constitution nor the
laws clearly designate whether the indigenous
people or the state has ownership of natural
resources in indigenous territories.
Nevertheless, the Constitutional Court has
interpreted provisions in the Constitution and
ILO 169 to conclude that indigenous groups do
own natural resources on their lands,
unequivocally stating that “the recognition of
the right of collective property of the resguardos
by indigenous people includes their ownership
over renewable natural resources.” In terms of
administration, management, and use of natural
resources, the Constitution itself gives
administrative authority to the indigenous
authorities, also stating that one of their explicit
functions is to “ensure the preservation of the
natural resources” on their lands. Additionally,
the regulations that establish the management
and governance systems of the resguardos
recognize specific responsibilities of the
indigenous authorities in natural resource
management, which should be carried out
according to the customs and use patterns of the
communities.
Peru is one of the Latin American countries that
categorically decrees in its body of law that both
renewable and non-renewable natural resources
21
Models for Recognizing Indigenous Land Rights in Latin America
are the “patrimony of the Nation,” and that the
state is sovereign in the use of those resources.
Both the Law of Native Communities and the
Law of Campesino Communities give local
communities exclusive rights to utilize the
natural resources on their lands and a certain
amount of decision-making power over those
resources, but they are severely constrained
within the limits of their traditional use
patterns. Formally, the responsibility for
administering those resources is shared between
the local communities and the state.
Tenure Security
There are many elements that contribute to the
relative security of land tenure, but here we will
focus on two: whether the titles have been
given following the proper regulations and
procedures for that purpose, and whether those
norms that govern land recognition are in
conflict with other laws or regulations within
the legal regime of a particular country.
Costa Rica is a simple case in which the
responsibilities and procedures for indigenous
land recognition are clearly stated in the body of
law and regulations. There do not seem to be
any serious contradictions or ambiguities
between these responsibilities and procedures
and other laws and regulations, such as could
lead to legal questioning of titles granted to
indigenous groups.
In Panama, the Constitution defines as the
responsibility of the state the recognition of the
land claims of indigenous groups. The state has
chosen to fulfill this responsibility through the
emission of a special and specific law for each
comarca, which has served to make these titles
very secure. One small area of ambiguity,
however, is the lack of definition of rights and
responsibilities when an indigenous area
22
overlaps with a protected area, which is not an
uncommon problem; this could in some cases
affect the rights indigenous groups have in
those areas.
In Colombia, the procedures for recognizing
indigenous lands have been defined in a body
of law dating back to the 19th century and
including constitutions, international
agreements, and the various agrarian laws, with
their special provisions for indigenous
communities. The legal solidity of the
resguardos created under this body of law has
been tested in various court cases, and these
cases have been uniformly resolved in favor of
the indigenous communities. As in the case of
Panama, there is a slight ambiguity in the case
of lands that are both protected areas and
indigenous lands; while a number of legal
judgments have clearly established the
supremacy of indigenous titles, indigenous
rights over natural resources use in those cases
are unclear.
In Peru, as in Colombia, there is a relatively
long history of recognition of indigenous land
rights, as described above. In addition to the
procedures that have been defined by the law
for recognizing indigenous lands, indigenous
groups seeking title must first establish their
legal incorporation through an entirely separate
process. These two legal procedures are so
complicated and burdensome that it can take
years, even decades, to complete them. All the
titles that have been granted to indigenous
communities in Peru to date have followed
these procedures, which would seem to ensure
that the tenure they grant is quite secure. But
two factors mentioned previously may impinge
upon the seeming solidity of the titles. One is
the fact that the communities have only use
rights over forested lands, and not ownership
rights. The other is the open contradiction
Environment Department Papers
Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources Management
between the responsibility for perpetual
protection of indigenous land rights guaranteed
by ILO 169 and the provisions in the
Constitution of 1993 that allow for the
dissolution of any sort of association, including
indigenous groups, which would directly
impact their land rights.
Autonomy
The autonomy demanded by indigenous
peoples as essential to their being able to
exercise their fundamental rights is nowhere
legally defined, but the following conditions are
commonly supposed to comprise it:
•
The ability of indigenous groups to legally
incorporate, so that they can exercise their
rights and contract obligations as a group
•
The ability to use their traditional legal
norms and system of justice
•
The ability to decide their own form of
internal government and to manage their
relations with external groups
•
The ability to participate in analyzing and
deciding on issues that affect the group’s
interests.
In Costa Rica, the Indigenous Law states that
“indigenous communities have the legal
capacity to acquire rights and contract
obligations of all kinds.” It further adds that
“the population of each one of the reserves
constitutes a single community, administered by
an executive council, representative of the entire
population…The reserves will be governed by
the indigenous people using their traditional
communal structures or the laws of the Republic
that are applicable.”
In the case of Panama, all the provisions that
govern the autonomy of indigenous peoples are
Biodiversity Series
found in the various laws and regulations
creating and administering the comarcas. These
uniformly recognize the legal incorporation of
the indigenous communities; the ability of the
communities to administer their territories
according to their own norms and traditional
authorities; their right to manage and use their
natural resources, subject to applicable national
law; and their right to participate in initiatives
related to the improvement and development of
their communities. Although the laws of the
comarcas and their Organic Laws recognize the
application of ordinary legal procedures within
the indigenous territories, traditional authorities
are recognized as having a role to play in those
areas of conflict over which they have
traditionally had authority. The comarcas are
seen as political and administrative entities tied
to the political structure of the state, and their
authorities are seen as fulfilling a public
function.
In Colombia, by law and by tradition,
indigenous communities are seen as inherently
possessing legal incorporation, without having
to formally apply for that status. To gain
recognition of this status, they simply have to
present documentation of the naming of their
leaders, a document which also serves to give
legal recognition to those leaders. This is true
for all indigenous communities, with or without
resguardos. Those with reservation lands are
acknowledged to have these further rights: the
right to choose their own authorities; to
administer and govern their territory through
those authorities and to manage and use its
natural resources; to exercise rights and contract
obligations in relation to the administration of
their territories; to maintain relations and enter
into agreements with outside entities, public or
private, in issues related to the interests of the
communities; to define their own programs for
the development and improvement of their
23
Models for Recognizing Indigenous Land Rights in Latin America
communities; and to fulfill those legal functions
that have traditionally corresponded to them.
In Peru, the Constitution states that “native and
campesino communities have legal existence and
incorporation. They are autonomous in their
organization, their communal work, and the use
and free disposition of their lands, as well as in
their economic and administrative functions,
within the framework of the law.” The various
laws that govern indigenous and campesino
affairs give them ample capacity for decisionmaking in their internal affairs, including that of
elaborating their own statutes for the
organization and functioning of their
communities. The regulations of the Law of
Native Communities establish the General
Assembly of community members as the
maximum authority in those communities and
states that the “method of decision-making will
be consistent with the traditions of the
community.” Furthermore, the Constitution
grants to indigenous authorities the right to
“exercise jurisdictional functions within their
territories in accordance with customary law, so
long as this does not violate the fundamental
rights of the individual.”
Although the law apparently gives indigenous
people in Peru a great deal of autonomy, the
reality is somewhat different. The state has
created such a complex body of regulation of
these general provisions in the law that in fact it
exercises a great deal of control over indigenous
communities in their internal governance and
their development initiatives. This is especially
true in the management of natural resources in
the indigenous territories.
Legal Recourse
There are various factors that influence the
stability of property title to land within any
24
legal system. In addition to the factors
examined above in the section on tenure
security, another important factor are the legal
instruments or legal recourse to which the
titleholders have access to prevent the violation
of their property rights, or that help them reestablish their rights in the case of violation.
Below we will examine the situation of legal
recourse in each of the case study countries.
Like all other citizens, indigenous people in
Costa Rica have the right to turn to the courts to
defend their rights, acting in this case as a
legally recognized group and not merely as
individuals. For more than three decades, the
state in Costa Rica has empowered various
institutions to act on behalf of indigenous
communities to protect or promote their rights.
Among the most important is the National
Commission for Indigenous Affairs, or CONAI,
which is comprised of the President of the
Republic, different universities, ministries, and
representatives of the indigenous communities.
One of the several functions of this body is to
“guarantee respect for the rights of indigenous
minorities, ensuring that the state enforces the
individual and collective land rights of the
Indians.”
In Panama, the law gives the indigenous
authorities the right to defend their land rights
through legal action. Panama has also created
various institutions with the responsibility to
ensure the rights and defend the interests of
indigenous people. Without doubt, the most
important of these is the Indigenous Affairs
Commission of the Legislative Assembly, which
oversees the study and design of indigenous
land proposals, as well as generally defending
the fundamental rights of indigenous peoples.
Another recently-created institution is the
National Council on Indigenous Development
(CNDI), part of the president’s office, which is a
Environment Department Papers
Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources Management
consultative and deliberative body on policies
and public actions regarding indigenous people.
In Colombia, indigenous communities have
some very strong instruments at their disposal
to assure the protection of their territorial
property rights, or to vindicate those rights in
the case that they are violated. These include
the widely-recognized legal solidity of the
institution of the resguardo; the existence of
efficient legal resources for making claims
through the court system, introduced by the
1991 Constitution; the strong public
consciousness about indigenous rights, as
manifested in a series of legal decisions in favor
of indigenous rights by the Constitutional Court
over the years; and the recent establishment of
administrative bodies with responsibility in the
defense of the fundamental rights of indigenous
peoples, including land rights. Nevertheless,
the internal conflict within Colombia which has
existed for decades and has recently worsened,
has affected many indigenous areas, and this
puts at grave risk the effective control of many
of the indigenous communities over their
territories.
In Peru, indigenous communities can utilize the
legal recourse that all Peruvian citizens have to
defend their fundamental rights. Peru has also
created several institutions specifically
dedicated to defending indigenous rights.
Among these are the Public Defender, which
has a special program for the defense of the
Native Communities of the Amazon; the
Technical Secretariat of Indigenous Affairs
(SETAI), under the Ministry for the
Advancement of Women and Human
Biodiversity Series
Development; and the Indian Affairs
Commission, a multi-sectoral group in which
various government agencies and
representatives of indigenous communities
participate. An important challenge in terms of
legal recourse for indigenous people in Peru is
the limited and unsuccessful experience they
have had in this field, since there is no history of
the judiciary upholding their rights in the past.
Conclusions
As the case studies amply illustrate, the legal
situation of indigenous land rights in the
countries of Latin America is highly varied.
There is no single pattern of legal rights that
guarantees a successful outcome on the ground
for indigenous land tenure; rather, different
combinations of rights can yield strong or weak
results, depending on the context and the extent
of political will. Nevertheless, the case studies
do show that legal systems more strongly
support indigenous land rights when they take
into account not only land ownership itself, but
also the security of that ownership and whether
it is conceptualized within the framework of the
concept of an indigenous territory. Land rights
are also stronger when the legal system
concurrently recognizes other rights over
natural resources on indigenous lands and the
rights of indigenous peoples to manage their
own affairs. Recognizing the land rights of
indigenous peoples then is not a simple
question of granting title, but involves
addressing a more complex set of interrelated
legal, social, and political issues in order to be
effective and secure.
25
Notes
1.
Inalienable: Incapable of being lawfully
alienated, surrendered or taken away by
another.
2.
Imprescriptible: Incapable of prescription. (A
property which is held in trust is imprescriptible;
that is the trustee cannot acquire a title to it by
prescription; nor can the borrower of a thing get
a right to it by any lapse of time).
3.
Untransferable: Incapable of being
transferred from one person to another.
4.
Unmortgageable: Not susceptible of being
mortgaged or given as collateral to access
credit.
5.
Intangibility: Something that cannot be
touched.
Biodiversity Series
6.
The Maroons are the descendants of Black
slaves brought as plantation laborers from
Africa to Surinam in northeastern South
America, starting in the last half of the
seventeenth century. The ancestors of the
major Bush Negro tribes escaped from the
plantations of coastal Surinam to the forests
of the interior in the late seventeenth and
early eighteenth centuries. There they
developed distinctive societies reflecting a
blending and adaptation to local conditions
of various African socio-cultural patterns,
and incorporating strong Amerindian
influences in their material culture—for
example, horticultural practices, hunting
and fishing techniques, crafts such as
basketry, the use of therapeutic plants, and
so forth.
27
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